2024:MHC:466 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29.01.2024 CORAM THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.No.40051 of 2006 and M.P.No.1 of 2006 Tvl. Senthil Textiles Mills private limited ... Petitioner Vs.

1. The Union of India, Rep. by the Secretary, Department of Energy, New Delhi.

2. The State of Tamil Nadu, Rep. by the Secretary, Department of Energy, Fort St., George, Chennai – 600 009.

3. The Tamil Nadu Electricity Board, Rep. by the Chairman, 800, Anna Salai, Chennai – 600 002.

4. The Superintending Engineer, TNED – Salem Distribution Circle, Salem – 636 106.

5. The Tamil Nadu Electricity Regulatory Commission, Rep. by the Secretary, 17, Third Main Road, Seethammal Colony, Alwarpet, Chennai – 600 018. ... Respondents Prayer: Writ Petition is filed under Article 226 of the Constitution of India, to issue a Writ of Declaration, declaring that the clause 20.02 of the Terms and Conditions of supply of electricity of Tamil Nadu Electricity Board levying belated payment of surcharge 1.5 percent per month (18% per annum) is arbitrary, unreasonable discriminatory violative of Article 14 and 19(1)(g) of the Constitution of India for the account years 2002-03 to 2005-06 and consequentially direct the respondents not to collect BPSC pursuant to Lr.No.SE/SEDC/AOR/HT/A.3/F.Case File/SC No.146/06, dated 04.10.2006 issued by the fourth respondent.

For Petitioner : Mr.S.Rajesh for Mr.S.Sivanandham For R1 : Mr.J.Madanagopala Rao, Special Government Pleader For R2 : Mr.P.Balathandayutham, Special Government Pleader For R3 to R5 : Mr.I.Syed Sibghatulla, SC for TANGEDCO

O R D E R

The short point involved in the present Writ Petition is a challenge to the validity of the interest levied by the respondents herein on the belated payment of Surcharge at the rate of 18% per annum.

2. The learned counsel for the petitioner by relying upon the Division Bench decision of this Court in (2008) 5 MLJ 559, submitted that this Court had dealt with the percentage imposed for such belated payment of Surcharge and held that the interest rate of 12% would be the appropriate interest rate and not

18%.

3. The learned Special Government Pleader for the respondents, on the other hand, relied upon two decisions of the Hon'ble Apex Court reported in (1979) 4 SCC 560 and (1997) 5 SCC 772 and submitted that the petitioner is liable to pay Surcharge at the rate of 1.5% from the date of charges till due. 4. The Hon'ble Division Bench of this Court in the aforesaid decision in (2008) 5 MLJ 559 had modified the interest rate from 18% to 12% per annum on the levy of Surcharge by discussing various Judgements of the Hon'ble Apex Court including the two decisions cited by the learned Standing Counsel for the respondents. The relevant portions of the said orders reads as follows:

5. We have heard Mr. P.S. Raman, learned Additional Advocate General, appearing for the respondent Electricity Board. He would submit in his argument that the Superintending Engineer is empowered to extend the time for the payment with a levy of surcharge at 3% per month and the non payment of the consumption charges even beyond the said period would attract 3% surcharge on belated payment and however, the consumers those who do not seek for extension of time but are paying the payments belatedly would get attracted with class 20.02 of the Terms and Conditions which prescribes only 1.5% towards surcharge. The learned Additional Advocate General would further submit that the terms and conditions of supply of electricity to the High Tension customers have been enacted by the 3rd respondent as per the powers conferred on it under Section 49 of the Electricity (Supply) Act 1948 and the payment of surcharge at 1.5% per month was also fixed for the purpose of avoiding the payments to be made by consumers in time without any delay. He would also submit in his arguments that the validity of clauses 20.02, 20.03 and 20.05 were questioned before this Court in various writ petitions and a Division